Legislature(2023 - 2024)ANCH LIO DENALI Rm
12/14/2023 01:00 PM House LEGISLATIVE COUNCIL
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ALASKA STATE LEGISLATURE
LEGISLATIVE COUNCIL
DECEMBER 14, 2023
1:00 PM
MEMBERS PRESENT
Senator Elvi Gray-Jackson, Chair
Representative Kevin McCabe, Vice Chair
Senator Click Bishop
Senator Matt Claman
Senator Lyman Hoffman
Senator Jesse Kiehl
Senator Donny Olson
Senator Bert Stedman (alternate)
Senator Gary Stevens
Representative Bryce Edgmon
Representative Sara Hannan
Representative Craig Johnson
Representative Dan Saddler
Representative Cathy Tilton
MEMBERS ABSENT
Representative George Rauscher
OTHER MEMBERS PRESENT
None
AGENDA
APPROVAL OF AGENDA
APPROVAL OF MINUTES
COMMITTEE BUSINESS EXECUTIVE SESSION
OTHER COMMITTEE BUSINESS
SPEAKER REGISTER
Jessica Geary, Executive Director, Legislative Affairs
Agency (LAA)
JC Kestel, Procurement Officer, LAA
Kris Curtis, Legislative Auditor
Megan Wallace, Chief Counsel, Legal Services, LAA
I. CALL TO ORDER
1:04:46 PM
CHAIR GRAY-JACKSON called the Legislative Council meeting
to order at 1:04 pm on December 14, 2023, in the Anchorage
Legislative Office Building. Present at the call were:
Senators Bishop, Claman, Gray-Jackson, Kiehl, Olson,
Stedman, Stevens; Representatives Hannan, Johnson, McCabe,
Saddler, Tilton.
Twelve members present.
Representative Edgmon joined the meeting at 1:15 pm;
Senator Hoffman joined the meeting at 1:58 pm.
II. APPROVAL OF AGENDA
1:06:15 PM
VICE CHAIR MCCABE moved that Legislative Council approve
the agenda as presented.
The agenda was approved without objection.
III. APPROVAL OF MINUTES
1:06:34 PM
VICE CHAIR MCCABE moved that Legislative Council approve
the minutes for November 17, 2023, as presented.
The minutes were approved without objection.
IV. COMMITTEE BUSINESS EXECUTIVE SESSION
CHAIR GRAY-JACKSON stated the Council would go into
Executive Session to discuss A Special Audit of the
Department of Law, Spending on Contracts related to Janus;
a contract for the Terry Miller Building HVAC Control
System; discussion of office space in Anchorage related to
the Office of Victims Rights; and a brief discussion about
the Assembly Building Apartments.
1:07:27 PM
VICE CHAIR MCCABE moved that Legislative Council go into
Executive Session under Uniform Rule 22(B)(1), discussion
of matters, the immediate knowledge of which would
adversely affect the finances of a government unit and 22
(B)(3), discussion of a matter that may, by law, be
required to be confidential. The following individuals may
remain in the room or online during Executive Session:
Jessica Geary, Megan Wallace, Emily Nauman, Marie Marx,
Hilary Martin, Santé Lesh, JC Kestel, Ernest Daigle, Molly
Kiesel, Serge Lesh, Dottie Shook, Shay Wilson, Kris Curtis,
Shane Hooten, Dylan Bratlie, any legislators not on
Legislative Council, and any staff of Legislative Council
members.
1:08:23 PM
A roll call vote was taken.
YEAS: Senators Bishop, Claman, Gray-Jackson, Kiehl, Olson,
Stedman, Stevens; Representatives Edgmon, Hannan, Johnson,
Saddler, Tilton, McCabe
NAYS: None
The motion passed 13-0.
Prior to Council going into Executive Session, at the
request of Chair Gray-Jackson, Vice Chair McCabe modified
the motion to allow Micheal Chadwick, Legislative Audit, to
remain in the room for Executive Session. There was no
objection to this modification.
1:09:40 PM
Council went into Executive Session.
2:35:24 PM
Council came out of Executive Session.
A roll call vote was taken to establish a quorum.
YEAS: Senators Bishop, Claman, Gray-Jackson, Hoffman,
Kiehl, Olson, Stevens; Representatives Edgmon, Hannan,
Johnson, Saddler, Tilton, McCabe
Thirteen members present.
2:36:44 PM
A. Legal update regarding A Special Audit of the Department
of Law, Spending on Contracts Related to Janus
2:37:05 P M
VICE CHAIR MCCABE moved and asked Legislative Council,
under the authority of AS 24.20.060(4)(F), authorize a
contract for legal services, not to exceed $100,000 to
undertake litigation on behalf of the Legislature regarding
matters described in A Special Audit of the Department of
Law, Spending on Contracts related to Janus dated May 19,
2023, and further moved that Legislative Council authorize
the Chair to give direction to Legislative Legal Services
and outside legal counsel regarding the litigation.
CHAIR GRAY-JACKSON objected for the purpose of discussion
and asked Ms. Curtis, Legislative Auditor, to summarize the
issue and that Legal Services be available for questions.
KRIS CURTIS, Legislative Auditor, stated that the Division
of Legislative Audit (DLA) was asked to perform an audit on
the Department of Laws spending on contracts related to
Janus. That audit was released last month and is available
to the public on the DLA website. She said she would
provide an overview of the audits conclusions and the
recommendation, and began by saying this audit was directed
to identify all contracts entered into by the Department of
Law for Janus-related services, report on the services
provided under the contracts and the amount expended, and
determine whether spending for Janus-related services
violated State law.
The audit's opinions on whether the Legislatures
restrictive Civil Divisions appropriations were legally
constructed and whether Department of Laws expenditures on
matters related to Janus were allowable for State law are
based on an evaluation of opposing legal arguments: one
legal argument made by Legislative Legal Services and one
made by the Attorney General. The basis for the audits
opinion are included in the audit report, however, a final
legal determination can only be made by the appropriate
court. Ms. Curtis said it was her opinion that the
Legislature, through constructing the Department of Laws
FY 21 and FY 22 Civil Division appropriations with specific
limitations, legally restricted the Department of Laws
ability to contract with outside counsel for Janus-related
matters. She said that in other words, she believed
Legislative Legal Services arguments were stronger that
the appropriations were not a violation of the
Constitutions confinement clause or an improper
encroachment of the separation of powers. She said she also
concluded that the Department of Laws decision to pay
outside counsel for services related to Janus from an
appropriation that expressly prohibited those expenditures
likely violated State law. Further, the audit concluded
that the appropriation language that limited expenditures
on specific legal cases was perceived by some as a
legislative attempt to inappropriately influence the
Attorney General's actions and, as such, it increases the
risk of litigation. Ms. Curtis said that the audit had one
recommendation, which was for the Legislature to consider
whether judicial review and/or ratification is necessary.
Given that the audit concluded that the Civil Divisions
restricted appropriations were likely legally constructed
and the Department of Law disregarded the legislative
restrictions, the Legislature should consider whether
judicial review is necessary. Given the audit concluded the
related expenditures were likely unauthorized, she
recommends the Legislature consider ratifying the
expenditures which would put on record that the Legislature
considers those expenditures as unauthorized. She ended her
testimony by saying that as she understood it, those two
options are mutually exclusive.
VICE CHAIR MCCABE stated his objection to the motion and
expending funds on this issue as he thinks it is
politically driven. He stated the easier path forward would
be to ratify what the Attorney General has done. He said
this proposed action would use a sledgehammer when we could
be using a scalpel.
SENATE PRESIDENT STEVENS stated that while he appreciates
the comments and that it will be expensive, he feels it is
very important that the Legislature protect its
appropriating power. He went on to say its the
Legislatures job to keep control of State spending. He
said the motion stated the cost would be $100,000, but it
is possible it could be more, and if it goes to the Supreme
Court it could be double. He asked Ms. Curtis to help
members understand the cost of this type of litigation.
MS. CURTIS deferred the question to Megan Wallace with
Legislative Legal Services.
MEGAN WALLACE, Chief Counsel with Legislative Legal
Services, stated the motion before Council is for a
contract not to exceed $100,000 and, as Senate President
Stevens noted, there is certainly the potential that this
matter could cost more, particularly if the matter is
appealed to the Alaska Supreme Court. She said should
Council approve this motion, it is likely there will be the
need to request additional funds depending on how the
litigation progresses and the needs of outside counsel.
Overall, purely legal constitutional matters that arise out
of disagreements between different branches of government
generally cost between $100,000 and $150,000 to litigate at
the Superior Court level and an additional $100,000 to
$150,000 at the Supreme Court level.
SENATE PRESIDENT STEVENS thanked Ms. Wallace for the
information and said this is an important principle to
uphold and also important to know that it is possible it
could be more expensive than the current motion states at
$100,000.
SENATOR OLSON asked Ms. Wallace since this is a
constitutional issue, what are the chances the matter will
go to summary judgement and a decision will be made
immediately.
MS. WALLACE stated it is very likely this matter would go
to summary judgement. This is not a matter where facts will
likely be disputed between the parties. She said the audit
is very comprehensive, there is a record of the contracts
and what money was spent, so the parties are unlikely to
dispute matters of fact. These will be purely legal
constitutional issues that are briefed on summary judgement
to the court and the parties will have to decide whether or
not this is a matter to request be expedited. She continued
that if the matter is expedited, there is the potential the
parties could ask for a decision before the end of session,
otherwise the matter would be briefed on summary judgement
based on a scheduling order entered by the court. In
general, if the matter is not expedited, it could take six
months to a year after the case is initiated to get that
order, but it is difficult to predict the exact timing.
SENATOR KIEHL stated he appreciated the motion and will
support it. He said he read the audit and thought it was
extremely thorough and wanted to stress that this is not an
angry lawsuit, just a situation where the Legislature and
the governor have a difference of opinion on where the
constitutional line is, and the Legislature needs to submit
it to the third branch of government. He provided an
example of a past lawsuit (Knowles v. Legislative Council)
that determined, in part, what an Alaska governor may veto
and how that determination has impacted future Alaska
governors. He said this issue is another point of dispute
between the branches and he believes it is appropriate to
take the good faith opinion of Legislative Legal Services
and outside counsel hired by the auditor and the good faith
opinion of the attorney general and send them to the Courts
for a ruling on what the constitution does or does not
allow in what he called a genuine dispute between the
branches of government. He ended by reiterating his support
for the motion.
REPRESENTATIVE EDGMON stated he had given this a lot of
thought, listened to the discussion, reviewed the audit,
and thought the matter was extremely important. He said
having been in the Legislature during previous battles with
the Executive Branch over forward funding of education and
powers of appropriation, while not a lawyer he knows enough
to know there is ambiguity between what is constitutionally
permissible for the Legislature in terms of its
appropriation powers and that precedence is pretty
important in terms of what can happen, not just with the
current governor and administration but future governors
and future administrations. He said the one power the
Legislature has that should be unassailable is the power to
appropriate. He said there are three options: this first is
to do nothing. He said the second option is to wait for a
future budget action to take place that had some
unpredictability tied to it. He then interrupted his
statement to ask if the Legislature did take the
ratification option whether the governor could then veto
that.
MS. WALLACE stated some of the case law on appropriations
is from an old case that attempted to look at what items
are eligible for the governor to veto. We know the governor
cannot strike words to achieve a different purpose and the
governor can only veto an appropriation which is a sum of
money for a particular purpose. This ratification
appropriation alternative that has been discussed would be
an appropriation item that ratifies expenditures that have
already taken place. In her opinion, it would not be
eligible for veto, but we may find ourselves in another
dispute if the governor or the attorney general had a
different opinion.
REPRESENTATIVE EDGMON thanked Ms. Wallace for the
clarification. He said the central question is how to
protect the right of the Legislature to appropriate. The
underlying issue in the Janus decision is separate in this
matter. He said he worries about what future governors can
do and future attempts to take advantage of any sort of
wiggle room in whatever appropriation or allocation. He
also thinks about the cost of doing this, which could be
several hundreds of thousands of dollars, potentially; and
then he thinks about statehood defense and how many
millions that have been spent: five million last year, two
million in his (the Governors) proposed budget, six
million in the coffers before that as he understands it. He
continued that many past governors have requested millions
to protect Alaska in terms of statehood defense and some of
that has also been politically driven and some of that
defense has not reflected the will of the Legislature and
it goes both ways. He said he doesnt see any way he
couldnt support this; that he has to support it to protect
the legislative institution so he will be a yes vote.
VICE CHAIR MCCABE asked what happens if the judge rules
against the Legislature, what happens to the legislative
power of appropriation. Everyone seems certain, based on a
couple of opinions and an audit that the judge is going to
rule that the Legislature has the power of the purse and
what the attorney general did was wrong. What if the judge
doesnt say that? What if the Supreme Court doesnt say
that? He said if that happened would we have given up some
of the power that we have?
SENATOR CLAMAN stated he had the privilege to hear Chief
Justice Roberts speak about the typical case that appears
before the U.S. Supreme Court and observed that almost all
of them involved separation of powers and questions of
powers of the three branches. This lawsuit is
quintessentially a question about the powers of two of the
branches and he thinks it's a good lawsuit to bring to get
a better idea of the parameters of those powers.
There were no additional questions, and the Chair removed
her objection to ask for a roll call vote.
2:54:35 PM
A roll call vote was taken.
YEAS: Senators Bishop, Claman, Gray-Jackson, Hoffman,
Kiehl, Olson, Stevens; Representatives Edgmon, Hannan,
Saddler
NAYS: Representatives Johnson, Tilton, McCabe
The motion passed 10-3.
C. Approval of Terry Miller Building, HVAC Controls
2:55:39 PM
VICE CHAIR MCCABE moved that Legislative Council approve
award of RFP 660 Terry Miller Building HVAC Controls to
Long Building Technologies, Inc., with a not to exceed
contract value of $775,931.00.
CHAIR GRAY-JACKSON objected for the purpose of discussion
and asked Mr. Kestel to speak to the item and answer
questions.
JC KESTEL, Procurement Officer (LAA), said the agency
conducted RFP 660 to solicit qualified proposals for
replacement of the Terry Miller Building HVAC control
system. Two offers were received, the Proposal Evaluation
Committee evaluated the offers and recommended that Long
Building Technologies be awarded the contract.
There was no discussion and Chair Gray-Jackson removed her
objection.
2:57:05 PM
A roll call vote was taken.
YEAS: Senators Bishop, Claman, Gray-Jackson, Hoffman,
Kiehl, Olson, Stevens; Representative Edgmon, Hannan,
Saddler, Tilton, McCabe
NAYS: None
The motion passed 12-0.
2:58:14 PM
Council took a brief at-ease.
2:59:04 PM
Council returned from brief at-ease.
CHAIR GRAY-JACKSON asked if the Council objected to
skipping item V(a) Print Shop Policy, as well as item IV(b)
RFP 664 Lease Office Space in Anchorage.
There were no objections and items V(a) and IV(b)were set
aside.
V. OTHER COMMITTEE BUSINESS
B. Intranet Photo Requirement
2:59:36 PM
VICE CHAIR MCCABE moved Legislative Council approve the
Intranet Photo Policy as presented.
CHAIR GRAY-JACKSON objected for the purpose of discussion
and asked Ms. Geary to speak to the item.
JESSICA GEARY, Executive Director (LAA), said before
members is the Intranet Photo Policy with two proposed
minor changes. The first changes Media Services to LAA
in general in the policy language, and the second change is
to have Media Services accept the photo prior to posting
on the intranet to ensure the photo clearly shows the
individuals face. This policy is before the committee
because of a request made by the Security Subcommittee and
Chief of Security Rayme Vinson. This simple security
measure would require staff and interns have their photos
on the intranet so they can be easily identified by
Security. She said this is a simple policy that states that
if staff do not have their photo taken within five days of
employment or session start, whichever is earlier, their
key card will be revoked. There is also the ability to
submit a recent (within three years) photo instead of
having LAA staff take the photo.
CHAIR GRAY-JACKSON asked for a roll call vote.
3:02:02 PM
A roll call vote was taken.
YEAS: Senators Bishop, Claman, Gray-Jackson, Hoffman,
Kiehl, Olson, Stevens; Representatives Edgmon, Hannan,
Johnson, Saddler, Tilton, McCabe
NAYS: None
The motion passed 13-0.
C. LAA Van Purchase
3:02:57 PM
VICE CHAIR MCCABE moved that Legislative Council authorize
Legislative Affairs to purchase a new van under the State
of Alaska contract with Kendall Ford of Anchorage, with a
not-to-exceed purchase limit of fifty-five thousand
dollars.
CHAIR GRAY-JACKSON objected for the purpose of discussion
and asked Mr. Kestel to speak to the item and answer
questions.
MR. KESTEL, Procurement Officer (LAA), said before members
is a memo requesting to replace a seventeen-year-old van
used for LAA daily operations in Juneau. LAA conducted a
simple RFQ to seek quotes from various dealerships
throughout Alaska as well as out of state. Kendall Ford of
Anchorage, the State of Alaska contracted dealer for the
State equipment fleet, had the lowest quoted price.
CHAIR GRAY-JACKSON removed her objection and asked for a
roll call vote.
3:04:22 PM
A roll call vote was taken.
YEAS: Senators Bishop, Claman, Gray-Jackson, Kiehl, Olson,
Stevens; Representatives Edgmon, Hannan, Johnson, Saddler,
Tilton, McCabe
NAYS: None
The motion passed 12-0.
D. Assembly Building Apartments Update
CHAIR GRAY-JACKSON asked Ms. Geary to update members on the
Assembly Building Apartments and answer any questions.
MS. GEARY reported the Assembly Building Apartments project
is on time and on budget, and there is projected to be
additional savings at the end of the project which would be
used for exterior work next interim; among other things,
the building has concrete windowsills that are in poor
shape and the exterior of the building needs to be
repainted. Capital Office Supply is installing furniture,
and blinds have been installed on the third floor and will
soon be installed on the two remaining floors. LAA has been
busy placing other furnishings and artwork in the
apartments. Juneau Real Estate has been contacting tenants
and offering apartments to nine legislators and twenty
staff. Several prospective tenants dropped off the list,
and four apartments remain to be rented, which she did not
think would be a problem to fill. Tenants should be able to
move in on January 9 because the project is to be completed
and the final inspection is scheduled on January 8.
CHAIR GRAY-JACKSON thanked Ms. Geary and the LAA staff for
all the work that went into completing the Assembly
Building Apartments.
VI. Adjournment
CHAIR GRAY-JACKSON asked members if there were any
questions or comments prior to adjournment.
REPRESENTATIVE EDGMON commented on the requirement for
Multi-Factor Authentication (MFA) on all legislative
devices.
CHAIR GRAY-JACKSON thanked members for attending this
Legislative Council meeting and making meetings a priority.
She also thanked LAA, the Anchorage LIO, the auditors, the
attorney, and her staff, and anyone she may have missed
that contributed to the success of this meeting.
3:08:52 PM
With no further business before the committee, the meeting
was adjourned at 3:08 PM.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Leg Council Agenda_12.14.23_FINAL.pdf |
JLEC 12/14/2023 1:00:00 PM |
|
| Leg Council Minutes_DRAFT_11.17.23_JLEC 111723 146 PM.pdf |
JLEC 12/14/2023 1:00:00 PM |
|
| RFP 664 Lease of Office Space in Anchorage, Alaska - ExecSess Req.pdf |
JLEC 12/14/2023 1:00:00 PM |
|
| RFP 660 Terry Miller Building HVAC Controls - ExecSess Req.pdf |
JLEC 12/14/2023 1:00:00 PM |
|
| Printing-Shop-Policy_CURRENT_03.23.10.pdf |
JLEC 12/14/2023 1:00:00 PM |
|
| Printing-Shop-Policy_DRAFT_12.14.23.pdf |
JLEC 12/14/2023 1:00:00 PM |
|
| Intranet Photo Policy DRAFT 12.14.23.pdf |
JLEC 12/14/2023 1:00:00 PM |
|
| LAA Van Purchase Request to LEC.pdf |
JLEC 12/14/2023 1:00:00 PM |
|
| Special Audit of the Dept of Law, Spending on Contracts Related to Janus.pdf |
JLEC 12/14/2023 1:00:00 PM |
|
| Intranet Photo Policy REVISED DRAFT 12.14.23.pdf |
JLEC 12/14/2023 1:00:00 PM |